Connecting Positive and Normative Legal Theory - Penn Law

CONNECTING POSITIVE AND NoRMATIvE LEGAL THEORY

Adrian Vermeule

Positive and normative legal theory often seem to have little to do
with one another. Part I describes the disconnect and suggests that it
arises from two sources: the gap between fact and value, and the gap
between external and internal perspectives on law. In the following
Parts, I lay out a repertoire of strategies and mechanisms for connect-
ing positive and normative legal theory. Part II examines cases in
which positive theory serves as a direct sourceof normative arguments.
Part III examines cases in which positive theory serves as an indirect
constraint on normative decisionmaking. In the latter case, positive
theory serves a constructive role by narrowing the set of normative
arguments that must be considered when deciding what to do. Part
IV extends the theme of constraints to a second-order question: In
light of our best positive theories, to what audiences can normative
scholarship be addressed?

I. POSITIVE AND NORMATIVE THEORY DISCONNECTED

Positive and normative legal theory (and for that matter, political
and moral theory, but I will focus on legal theory) often seem radi-
cally disjunct; it is sometimes not clear, even in principle, what posi-
tive and normative theory have to do with one another. Two recur-
ring conceptual problems create this disconnect. The first is the gap
between fact and value. The second is the gap between internal and
external perspectives on law. I will offer some brief remarks on each
before discussing, in the following Parts, how the gaps can be
bridged.

The fact-value distinction is alive and well in many quarters, de-
spite the best efforts of some philosophical pragmatists and the dis-
repute of logical positivism. Some economists remain hostile to wel-
fare economics on positivist grounds, arguing that the Kaldor-Hicks

Professor of Law, Harvard Law School. Prepared for the University of PennsylvaniaJournal
of ConstitutionalLaw 2007 Symposium, "Positive Approaches to Constitutional Law and
Theory." Thanks to Matt Stephenson, Cass Sunstein, Mark Tushnet, and the symposium
participants for helpful comments, and to Abby Wood for helpful research assistance.

JOURNAL OF CONSTITUTIONAL LA W [Vol. 10:2

criterion and other staples of normative welfarism require interper-
sonal comparisons that are meaningless, epistemically too demand-
ing, or unscientific. Lionel Robbins's original argument against in-

terpersonal comparisons, although it conflated these conceptual,
epistemic, and methodological points, argued in fact-value terms. 1

Philosophical argumentation that seeks to close or reduce the
gap, such as the distinction between "brute" facts that are value free
and "institutional" facts that presuppose values,2 does not fully cap-
ture the everyday appeal of the distinction. Philosophers who deny
that the distinction captures any metaphysical truth may also admit its

utility, thus allowing that there is a pragmatic case for the fact-value
distinction.3 And the distinction is part of the everyday toolkit of de-
bates in legal theory. Thus in the debate over "super precedents, 4
originalist Randy Barnett argues in part that common-law theorists
confuse fact and value:

An explanation of why a particular decision will not soon be over-
ruled.., is distinct from an argument for why it ought not one day be re-
versed when the time is ripe .... [I] n their defense of the irreversibility of
super precedents, [common-law theorists] seem to be committing two
fundamental fallacies. The first is the conflation of the "is" with the
"ought"; the second is the conflation of the "actual" with the "necessary."5

Barnett's first fallacy attempts to sever the connection between the
positive and normative sides of precedent-based approaches to consti-
tutional interpretation. His second fallacy addresses not the fact-
value distinction, but the modal distinction between alterable facts
and constraints that are inalterable (at least in the short run). I take
up that distinction in Part III.

The second gap is between external and internal perspectives on
law. Positive theorists, particularly theorists from nonlegal disciplines
or legal theorists heavily influenced by those disciplines, often take an
external perspective on law, while traditional doctrinalists stick reso-

1 See generally LIONEL ROBBINS, AN ESSAY ON THE NATURE & SIGNIFICANCE OF ECONOMIC
SCIENCE 136-47 (2d ed., rev. & extended 1940).

2 See generallyJohnR. Searle, How to Derive "Ought"from "Is,"73 PHIL. REv. 43 (1964).

3 See, e.g., HILARY PUTNAM, THE COLLAPSE OF THE FACT/VALUE DICHOTOMY AND OTHER
ESSAYS 43-45 (2002) (critiquing various justifications for the fact-value distinction).

4 See generally Michael J. Gerhardt, Essay, Super Precedent, 90 MINN. L. REv. 1204 (2006) (ar-
guing that some constitutional decisions have risen to the stature of "super precedents"
by, among other things, taking on great importance in the public consciousness); Daniel
A. Farber, Essay, The Rule of Law and the Law of Precedents, 90 MINN. L. REv. 1173 (2006)
(discussing the tension between the rule of law and stare decisis).

5 Randy E. Barnett, Response, It's a Bird, It's a Plane, No, It's Super Precedent: A Response to
Farberand Gerhardt,90 MINN. L. REV. 1232, 1241-42 (2006) (footnote omitted).

Jan. 2008] CONNECTING POSITIVE AND NORMATIVE LEGAL THEORY 389

lutely to the internal perspective. When theorists deploy positive po-
litical models that depict "law" as an equilibrium outcome of institu-
tional interactions, the payoff is unclear from the perspective of the
old school. On this view, if a judge asks at oral argument what the
"law" is in a given area, the advocate who answers, "The law is what
emerges in equilibrium from your interaction with other institu-
tions," is guilty of a category mistake. The judge is asking what she
should do, and why; the external account of law is no help with that
question. On this view, Holmes's famous claim that law is a predic-
tion of what the courts will in fact do6 is a resolutely external account
of law, one that cannot coherently be offered within legal practice.

This problem can arise from the other side of the internal-
external divide as well. When the internal theorist (implicitly ad-
dressing the judiciary) says that the law rightly understood requires
the judge to say X, but the external theorist can show with high prob-
ability that the judge will say Y, or can show that a multimember court
deciding a series of cases will in all likelihood say nothing coherent at
all,7 it is not clear what the relevance of the internal theorist's claim
really is. In Part IV, I examine the limiting case of this situation,
where the normative theorist recommends public-spirited measures
to officials who, according to the best positive theory, have no incen-
tive or motivation to listen to such advice. These twin possibilities-
that positive theory lacks a doctrinal payoff, and that normative the-
ory lacks a connection to the real world-emphasize the conceptual
gap between internal and external perspectives.

These gaps between fact and value, and between internal and ex-
ternal perspectives, are problems, but there are solutions as well. The
following Parts offer an analytic taxonomy of strategies for bridging

the two gaps, with illustrations from legal theory.

II. THE NORMATIVE POWER OF THE FACTUAL

I will begin with cases in which positive theory serves as a source of
normative theory; the next Part examines the constraints that positive
theory places on normative theory. The cases in this Part can be
lumped together under the rubric of "the normative power of the

6 See 0. W. Holmes, Justice, Supreme Judicial Court of Mass., The Path of the Law, Address
at the Dedication of the New Hall of the Boston University School of Law (Jan. 8, 1897),
in 10 HARV. L. REV. 457, 461 (1897) ("The prophecies of what the courts will do in fact,
and nothing more pretentious, are what I mean by the law.").

7 See generally Frank H. Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REv. 802
(1982).

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factual"8: facts or causal mechanisms are a direct source of normative
arguments that would not have existed had the relevant facts or cau-
sation been different. In some cases (examined in Parts II.A and
II.B), the normative power of the factual is rationally defensible. In
other cases (examined in Part II.C), however, the normative power of
the factual operates by nonrational mechanisms. The role of facts
and causal theories in creating constraints, and thus an indirect
source of normative arguments, is examined in Part III.

A. PrescriptiveTheory

In common parlance, normative theory encompasses two types of
arguments: claims about the best means to adopt, given stipulated
ends, and claims about what ends it would be good to adopt. How-
ever, claims about the best means to adopt, given stipulated ends, can
usefully be given a separate label as "prescriptive" theory. Prescriptive
theories support conditionalarguments from is to ought. In the case
of individual decisionmaking, if your goal is X, and the facts are Y,
then you should do Z. In the case of social or collective decisionmak-
ing, if there is normative consensus on X, and policy Ywould in fact
produce X (ignoring other costs), then Y is a good policy. If the goal
is to minimize unemployment, and the minimum wage increases un-
employment, then the minimum wage is bad and should be abol-
ished. Even if positive arguments about facts and causation cannot
directly change people's ultimate preferences or values, surprising
positive claims can supply new information that changes their derived
preferences over different policies, legal rules, or institutional ar-
rangements.

The best positive political theory has prescriptive value of this sort.
An example is Jerry Mashaw's model of the interpretive canon that
constitutional questions should be avoided, if fairly possible. The
canon is sometimes defended on the ground that, after all, the legis-
lature can reinstate the constitutionally problematic statutory rule by
legislating more explicitly, should a majority desire to do so. But
Mashaw's treatment yields the counterintuitive implication that un-
der a regime of narrowing interpretation, "even if the legislature acts
to 'correct' an interpretation with which it disagrees, it will almost
never end up with its originalpolicy reinstated,even ifnot a single member of

8 Georg Jellinek, Allgemeine Staatslehre [General Theory of the State] 338 (1929). Of
course, I am ripping this out of its original theoretical context.

Jan. 2008] CONNECTING POSITIVE AND NORMATIVE LEGAL THEORY 391

the legislature has altered his or her preferences."9 The main effect, one
that is easy to overlook without explicit modeling, is that a narrow in-
terpretation changes the status quo point and thus "reconfigure[s]
the structure of subsequent legislative bargaining." 10

The general point is that many normative approaches are partially
fact-dependent: they support no prescriptions at all unless and until
facts are plugged in, although facts are only necessary, not sufficient.
Famously, all purely consequentialist approaches are of this sort, be-
cause they hold that actions (or rules or dispositions) are good if and
only if their factual consequences are good; a value theory specifying
the good is also necessary, but facts are indispensable. Whether this
is an advantage or a defect of consequentialism is an open question.
Critics suggest that consequentialism is epistemically too demanding,
because no consequentialist will ever have sufficient information to
make the required judgments, and that consequentialism is scary, be-
cause any action, however monstrous, might be indicated by the the-
ory, given some conceivable state of affairs. For consequentialists,
however, the fact-dependence of the approach is an advantage, not
least because, in many cases, it underscores that when people differ
about what to do, they are often disagreeing (perhaps implicitly)
about facts and consequences. Debates over the minimum wage are
often driven by different estimates of its effect on employment levels
and other components of the well-being of low-wage workers, rather
than by high political principles.

B. Traditionas a Source of Norms

Another interpretation of "the normative power of the factual" is
that tradition can serve as a source of norms. Normative theorists
(including constitutional theorists) who emphasize tradition attempt
to leverage from "is" to "ought." On this class of views, the way things
are and have been is taken as a guide for making current decisions,
perhaps because following tradition minimizes disruption and pro-
tects expectations, or because it conserves decisionmaking costs, or
because it aggregates the contributions of many minds, or because
evolved institutions are likely to be optimal.

In constitutional theory, Burkeans and common-law constitution-
alists emphasize the role of traditions in giving content to constitu-

9 JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE
PUBLIC LAW 102 (1997).

10 Id. at 103.

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tional norms, understanding traditions to include both general social
and political traditions, on the one hand, and narrower judicial tradi-
tions or precedents, on the other hand." Common law constitution-
alism also shades into Dworkin's "law as integrity," in which prece-
dents are part of the legal landscape into which our principled
justifications must fit. 2 The language of fit, however, also makes

precedents sound like a constraint on acceptable justifications rather
than a direct source of norms, so integrity is an ambiguous case.

The puzzles and problems surrounding traditionalism in constitu-
tional adjudication are many.13 In the best case for traditionalists, the
relevant tradition has been continuous since some point in the re-
mote past, so it is currently the status quo, and the relevant tradition
can uncontroversially be identified. These conditions will often fail
to hold, however. For one thing, traditions notoriously can be de-
scribed at higher or lower levels of generality. 4 For another, it is not
obvious how Burkeans can deal with interrupted traditions. Where a
tradition was followed at time 1, but was abrogated or violated at time
2, what is the good Burkean to do at time 3? Both the time 1 practice
and the time 2 practice have their claims.

Even if the best conditions do hold, there is a further problem
that is especially troublesome."1 If judges decide on the basis of
precedent, rather than using their independent judgment, a type of
Burkean paradox arises. The paradox is that if many participants in
the line of precedent or tradition followed the precedent or tradition
(rather than exercising their independent reason), because doing so
was a way to improve their information, then the informational value

11 See generally Thomas W. Merrill, Bark v. Burke, 19 HARV.J.L. & PUB. POL'Y 509, 511-12,

515-19 (1996) (identifying differences among originalism, normativism, and convention-
alism); David A. Strauss, Common Law ConstitutionalInterpretation,63 U. CHI. L. REV. 877,
884-904 (1996) (detailing a precedent-based theory of the development of constitutional
law); Ernest Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional
Interpretation,72 N.C. L. REV. 619, 697-712 (1994) (evaluating the case for traditionalism
in constitutional interpretation).
12 See generally RONALD DWORKIN, LAW'S EMPIRE 225-75 (1986) (distinguishing "law as integ-

rity" from other accounts, such as conventionalism and pragmatism).
13 Here I draw on the illuminating recent overview in Cass R. Sunstein, Burkean Minimalism,

105 MICH. L. REV. 353 (2006).

14 The Burkean can propose simple rules to deal with this, such as always describing the tra-
dition at the lowest relevant level of generality. See, e.g., Michael H. v. Gerald D., 491 U.S.
110, 127 n.6 (1989) (plurality opinion). But the problem is why that simple rule, rather
than another, should be chosen.

15 This paragraph and the next draw upon Adrian Vermeule, Essay, Common Law Constitu-
tionalism andthe Limits of Reason, 107 COLUM. L. REV. 1482 (2007).

Jan. 2008] CONNECTING POSITIVE AND NORMA TIVE LEGAL THEORY 393

of the tradition is lower to that extent; there are fewer independent
minds contributing to the collective wisdom.

On this account, Burkean praise for precedent is self-defeating.
The best contributions to the stream of precedent are those in which
individual judges, or small groups of judges, exercise their unaided
reason. Those who rely on tradition because it is, in Burke's words,
the "bank and capital of nations and of ages," 6 make withdrawals
from the common pool of information, for their private benefit;
those who exercise their unaided reason contribute to the common
pool, for the good of all.

Despite all this, the infirmities of Burkeanism should not obscure
the important theoretical role that tradition plays. Right or wrong,
the claim for tradition is that the way things are and have been itself
serves as a direct source of norms, potentially bridging the gap be-
tween fact and value. The appeal to tradition remains the most theo-
retically critical attempt to leverage directly from "ist"o "ought."

C. The NonrationalPower of the Factual

So far, we have been considering ways in which positive theory
might serve as a source of norms for a rational decisionmaker. How-
ever, there are also mechanisms that cause nonrational or boundedly
rational decisionmakers to afford weight to the way things are-
weight that is arbitrary or excessive according to some background
account of rational decisionmaking. At the level of individuals, the
umbrella label is status quo bias, which subsumes phenomena such as
loss aversion, under which losses from an arbitrary baseline are
weighted more heavily (in fact about twice as heavily) as equivalent
gains;17 the related phenomenon of opportunity-cost neglect, in
which people weigh out-of-pocket costs more heavily than foregone
gains, even if the two are economically equivalent; and the endow-
ment effect, which under certain circumstances may cause a diver-
gence between individuals' valuations of things they possess and
things they could obtain.18

16 EDMUND BURKE, REFLECTIONS ON THE REVOLUTION IN FRANCE 74 (Frank M. Turner ed.,
Yale Univ. Press 2003) (1790).

17 See generally Amos Tversky & Daniel Kahneman, Loss Aversion in Riskless Choice: A Reference-
Dependent Model, 106 Q.J. ECON. 1039 (1991) (describing prospect theory).

18 It is not clear that the endowment effect exists; at a minimum, it appears to be highly sen-
sitive to the precise details of the situation. For a recent skeptical treatment, with an
overview of the literature, see generally Charles R. Plott & Kathryn Zeiler, The Willingness
to Pay-Willingness to Accept Gap, the "EndowmentEffect, "Subject Misconceptions, andExperimen-
tal Proceduresfor ElicitingValuations,95 AM. ECON. REV. 530 (2005).

JOURNAL OFCONSTIFUTIONAL LAW (Vol. 10:2

Confusion arises when skeptics point out that, in certain cases, a
fully rational individual may display similar behaviors, because (for
example) the individual is risk averse. The problem is that the actual
mechanisms that bring about the behavior may, in particular cases,
have nothing to do with such post hoc redescriptions. Some behavior
is overdetermined, in the sense that either the fully rational or the
boundedly rational decisionmaker may engage in it, for different rea-
sons; it is unclear why we should care that a fully rational decision-
maker might have done the same thing, if in fact the behavior did not
arise in a fully rational way. The behaviors might be observationally
equivalent taken in isolation, but careful experimentation can often
trace the processes that produced them and determine whether those
processes were or were not rational.

III. POSITIVE THEORY AS A CONSTRAINT

Besides serving as a direct source of norms, facts and causal
mechanisms can serve as indirect constraints on decisionmaking. Of
course there are other indirect constraints; among these are the rules
of logic, as exemplified by Arrow's Theorem, 9 and other impossibility
results. However, I will restrict myself to the role of positive con-
straints. Roughly, facts and causal mechanisms can constrain norma-
tive decisionmaking either by raising the costs of given actions, or by
putting them outside the opportunity set altogether. These two ways
can be reduced into one by defining actions outside the opportunity
set as having an infinite cost, but this is a semantic reconciliation
only, so I will treat costs and constraints separately.

First, the existence of a status quo point may create costs of transi-
tion from the status quo to a preferred state; in some cases, those
costs may overbalance the gains from the switch. Transition costs
provide a rational interpretation of the theorist's common gambit of
attempting to "shift the burden" to the other side. This is often of-
fered in a rhetorical or tendentious spirit. In some cases, however,
the other costs and benefits of a normative proposal are uncertain,
and the existence of transition costs serves as a tiebreaker that deter-
mines the argument in favor of the status quo. This is at the level of
legal theory; within legal practice, as inside a courtroom, the shifting
of burdens is straightforwardly rational, a device to allocate the costs
of decisionmaking and of error.

19 See generally KENNETHJ. ARROW, SOCIAL CHOICE AND INDIVIDUALVALUES 46-60 (1951).

Jan. 2008] CONNECTINGPOSITIVE AND NORMATIVE LEGAL THEORY 395

Second, and more strongly, facts and causal mechanisms may limit
the opportunity set (or choice set or feasible set) of constitutional
rules or policies." One way in which facts and causal mechanisms
constrain normative theory is through the maxim "ought implies
can." It is a hoary proposition of individual-level ethics that one has
no obligation to do what one cannot do. It is not obvious that this
maxim is correct; consider that it is fully coherent to say things like, "I
should have helped him, but I couldn't." Statements of that sort sug-

gest a sharp distinction between our first-best obligations and our
second-best opportunities. On this view, although the existence of
constraints might excuse compliance with our obligations, it does not
eliminate their existence. 21 Pragmatically, however, the consequences
for decisionmaking are the same on either view. There is no practical
sense in urging a course of action that cannot be carried out.

In deploying arguments that attempt to dismiss some normative
proposal as infeasible or (more strongly) utopian, several further dis-
tinctions are necessary. One is between the short run and the long
run. Constraints that are inelastic in the short run often turn out to
be elastic in the long run, so the appeal to constraints is often invalid
if offered as an objection to the first steps in a long-term campaign
for change. Another distinction is between hard constraints of tech-
nology, biology, and physics-no human can be ten feet tall-and the
softer constraints of politics. The latter typically arise from interac-
tion equilibria among political actors and are highly susceptible to
disruption by sudden exogenous shocks or endogenous change, as
when threshold effects and tipping points create sudden discontinui-
ties in institutional behavior. In politics, change is often dismissed as
unthinkable, up until the moment at which, suddenly, it occurs. Ar-
guments from infeasibility that overlook these distinctions are a type
of political fallacy2 that are often invoked to prop up the status quo
for disreputable reasons.

20 Here I draw on the illuminating treatment in Lawrence B. Solum, ConstitutionalPossibili-
ties (Ill. Pub. Law & Legal Theory Research Papers Series, Research Paper No. 06-15,
2007), availableat http://ssrn.com/abstract=949052.

21 "[T] he fact that an agent cannot be blamed for doing A does not show that no wrong was
committed, and no norm violated." Robert Stem, Does 'Ought'Imply 'Can'? And Did Kant
Think It Does , 16 UTILITAs 42, 47 (2004).

22 See generallyJEREMY BENTHAM, BENTHAM'S HANDBOOK OF POLITICAL FALLACIES (Harold A.
Larrabee ed.,Johns Hopkins Press 1952) (1824) (describing politicians' use of the falla-
cies of authority, danger, delay, and confusion to perpetuate the status quo).

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IV. THE AUDIENCE FOR NORMATIVE THEORY

Finally, we may ascend to a higher theoretical level and examine

the role of positive theory as a constraint on the appropriate audi-
ences for normative theorizing.3 I have in mind various versions of
what is called, in economics, the "determinacy paradox." If govern-
ment is understood as a benevolent maximizer of social welfare, the
theorist's public-spirited or welfare-maximizing proposals are ad-
dressed to the right audience. Suppose, however, that governmental
motives are endogenized, and that government officials are modeled

as rationally self-interested actors. Then it is not clear that anyone
will be listening to public-spirited proposals; the audience to whom
they are addressed will be motivated to adopt them only if they hap-
pen to correspond to officials' self-interested aims. "[I]f what gov-
ernments do is the result somehow of equilibrium behavior of self-
interested actors, then advising government is as senseless an activity
afasu-altdtvoisbinegqmuioent.o,p24olists to lower prices or advising the San Andreas

The determinacy paradox does not rule out all forms of normative
theorizing. Prescriptive theory is still possible; the theorist can advise
self-interested actors about how to pursue their interests, and may be
able to persuade them that a proximate goal they previously favored
does not serve their ultimate or long-term interests. But normative
advice about the ultimate ends to be pursued will either fall on deaf
ears, if it diverges from the ends the self-interested agents already
hold, or will be otiose, if it corresponds to those ends.

In this standard version, the determinacy paradox arises because
of the theorist's motivational assumptions about the decisionmakers
to whom the normative proposals are addressed. However, a similar
paradox arises where normative proposals are addressed to decision-
makers who are assumed to be subject to cognitive limitations. In a
simplistic example, the advice not to panic during emergencies is not
very useful, if addressed to decisionmakers who are assumed to have a
propensity to panic during emergencies. Even knowing their own
tendencies in the abstract, the decisionmakers may reason, "It's gen-
erally good advice not to panic, but this situation really is serious, so

23 This paragraph draws on a discussion in Adrian Vermeule, Self-Defeating Proposals: Acker-
man on Emergency Powers, 75 FORDHAM L. REv. 631, 637 (2006).

24 Brendan O'Flaherty &Jagdish Bhagwati, Will Free Trade with PoliticalScience Put Normative
Economists Out of Work, 9 ECON. &POL. 207, 207 (1997).

Jan. 2008] CONNECTINGPOSITIVE AND NORMATIVE LEGAL THEORY 397

we must take severe measures"-a conclusion that may just embody
the very same panicky tendencies that the theorist diagnosed.

The determinacy paradox is ubiquitous in legal theory, particu-
larly in public choice theory, which endogenizes the motivations of
government officials at the risk of rendering public-interested pro-
posals fruitless. With modifications, the problem applies to norma-
tive proposals in traditional doctrinal scholarship addressed (as is
typically the case) to the Justices of the Supreme Court. Proposals in
this vein typically attempt to bring normative coherence to some do-
main of law through the Dworkinian procedure of fit and justifica-
tion-reconciling conflicting cases, texts, and other legal sources,
and by putting them in a normatively attractive light. In public
choice scholarship, and in the attitudinal models of judicial motiva-
tions prevalent in political science,25 however, Justices 6 are assumed
to engage in self-interested behavior, or at best, to vote in accordance
with their notions of good public policy, constrained at most by stra-
tegic calculations of the reactions of other institutions. If this is the
case, it is not obvious that anyone on the Court is listening to the doc-
trinal theorist's proposals for advancing the normative coherence of
constitutional law.

To make sense of doctrinal scholarship, one must assume either
that the Justices are directly interested in creating good law, or else
that the Justices are indirectly interested in doing so, because they
care about their reputation with (among others) the law professors
who care about good law.27 In the latter case, the Justices are a real
audience for doctrinal scholarship because law professors are a real
audience for the Justices' opinions. Whether this happy equilibrium
exists is an open question. If it does, however, it provides a bridge be-

25 I am oversimplifying slightly. A judge, for example, might act strategically in order to
maximize the chances that his (sincerely held) view of what the law requires will actually
be adopted by the court and will not be overridden by other institutions. More com-
monly, political scientists model judges as both strategic and interested solely in advanc-
ing their views of good policy, as opposed to good constitutional law. See, e.g.L,EE
EPSTEIN &JACK KNIGHT, THE CHOICESJUSTICES MAKE 22-107 (1998) (describing the stra-
tegic activities Justices undertake to advance their preferred policy positions).

26 This assumption does not necessarily apply to lower court judges, who face many fewer
cases in which the legal materials are indeterminate, and who thus have less scope for
self-interested or ideological decisionmaking.

27 See LAWRENCE BAUM, JUDGES AND THEIR AUDIENCES: A PERSPECTIVE ON JUDICIAL

BEHAVIOR 100-02 (2006) ("UJ]udges... care about the opinions of legal academ-
ics.... [Liaw professors control sources of judicial satisfaction such as publication of
opinions in casebooks and opportunities to lecture at law schools."). In Baum's picture,
law professors are one of the audiences that reputation-minded judges care about im-
pressing or pleasing.

398 JOURNAL OFCONS77TUTIONAL LAW [Vol. 10:2

tween internal legal theory offered by law professors and the external
perspective on judicial motivations-even assuming, from an external
perspective, that the Justices are not directly motivated to make the
law better.